1. In Kansas, aggravated incest is both a specific intent crime and a single act crime for
which multiple acts can be charged.

2. The State cannot treat aggravated incest as a single act crime for purposes of charging
multiple counts and at the same time treat the crime as a continuous course of conduct
crime for purposes of admitting evidence.

3. Where the giving of a unanimity instruction is required by the evidence, review is not
permitted under a clearly erroneous standard; the failure to give the instruction
becomes structural error requiring reversal.

In the present case, each count charged appellant with a single ongoing offense of
aggravated incest covering the same time period. In other words, appellant was charged with
two identical counts of aggravated incest. The victim could not recall how many times she
had been molested but testified to at least four incidents.

We must ask ourselves, for which occasion of alleged criminal conduct was appellant
convicted? Even if the jury believed that at least two incidents occurred and that they
occurred between January 1, 1992, and November 1, 1992, there is no way to determine
which
incidents the jury utilized in convicting. When faced with allegations of multiple incidents of
abuse, while the State may charge multiple counts, the State must elect at some point the
incidents for which adequate proof has been presented or give a unanimity instruction (the
"either/or rule"). See State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994)
(cites with
approval application of either/or rule in multiple acts crime cases).

The State cannot treat aggravated incest as a single act crime for purposes of charging
multiple counts and at the same time treat the crime as a continuous course of conduct crime
for purposes of admitting evidence. To permit the State to both charge a defendant with
multiple counts of a single act crime and present evidence as if it were a continuous course of
conduct crime would circumvent constitutionally guaranteed protections. If appellant were
again prosecuted for sexually abusing C.C. during the same time frame, there is nothing in
this record to determine which incidents provided the basis for his convictions.

Appellant contends his right to a unanimous verdict was violated by the trial court's
failure to give a unanimity instruction. Appellant failed to object at the trial court. See K.S.A.
22-3414(3). But where the giving of a unanimity instruction is required by the evidence,
review is not permitted under a clearly erroneous standard; the failure to give the instruction
becomes structural error requiring reversal. See State v. Barber, 26 Kan. App. 2d
330, 988 P.2d
250 (1999).

Barber is instructive. Barber was convicted of a single count of criminal
possession of a
firearm. The State's evidence was that Barber, a convicted felon, possessed a gun during a
disturbance and later returned to the scene with another gun in his possession. The
Barber
court stated the Supreme Court in Timley implicitly acknowledged that a unanimity
instruction is necessary to insure jury unanimity in multiple acts cases. Barber, 26
Kan. App.
2d at 331.

Further, the Barber court held:

"The trial court's failure to so instruct the jury prevents an objective analysis as to whether
the
jury unanimously agreed Barber was guilty of committing a specific criminal act. And to
quantify the evidence does not solve this Sixth Amendment problem--no amount of analysis
would ever permit us to say the jury unanimously agreed to the underlying act supporting the
conviction." Barber, 26 Kan. App. 2d at 331.

We face the same problem in the present case. Under the facts of this case, no amount
of analysis would ever permit us to say the jury unanimously agreed to the underlying act
supporting each of the two counts. And courts should not roam the unfenced fields of
conjecture and speculation. See Larson v. Bath, 15 Kan. App. 2d 42, 45, 801 P.2d
1331 (1990),
rev. denied 248 Kan. 996 (1991).

It is for the legislature to determine that aggravated incest is a continuing course of
conduct crime, thus allowing a defendant to be charged without specific dates. This would
presumably allow generic evidence and would not require the State to elect or require the
court to give a unanimity instruction. See State v. Dell'Orfano, 651 So. 2d 1213 (Fla.
Dist.
App. 1995).

The convictions are reversed and remanded for new trial.

1REPORTER'S NOTE: Previously filed as an unpublished
opinion, the Supreme Court
granted a motion to publish by an order dated May 3, 2000, pursuant to Rule 7.04 (1999 Kan.
Ct. R. Annot. 44).